The New Year dawned with the notification of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (Forest Rights Act) as well as the Rules. Many people are either for or against it. There are those who believe that historical injustice has been done to forest dwelling tribals and other communities especially during the reservation process. Tiger advocates are under the impression that the last portions of forest lands will be handed over to these communities who cannot coexist with wildlife and especially tigers. The truth probably lies in between.
It has taken almost two years for the government of India to formulate the Act and the Rules. The wait is finally over. The dilatory tactics applied, however, show a plain lack of understanding of the intent and purpose of the Act. Clearly, the two most vulnerable categories, the tiger and tribal, have suffered.
In the melee, have we lost the real debate amid the tigerwallahs and the tribalwallahs and sacrificed both the tiger and the tribal? The present impasse on the Forest Rights Act, which will have a tremendous bearing on its implementation, hinges around misinformation, exaggeration and lack of understanding on the amount of land to be transferred, ownership, process of recognition, the cut-off date, duties and the scope of the Act.
The preamble, which is the basis of any legislation, is categorical in its intent—to recognize and vest forest rights in those who have been residing in forests for generations, but whose rights could not be recorded. These rights include the responsibility and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance. These are well established principles globally, where security of tenure is the cardinal principle to ensure an effective conservation strategy. Forest management since the mid-1970s, including the forest policy, clearly recognizes the central role of communities in forest management.
What are these perceptions and exaggerations? Does the Act hand over 4ha of forest land to every tribal family? No, the recognition is about existing occupation up to a maximum of 4ha, to be validated in a three-level scrutiny process where every department concerned, including forest, tribal, revenue and panchayat, would be involved in verifying the veracity of the claims based on sound evidence.
The rationale for 4ha of land can certainly be questioned. This magical figure is a bargain between the 2.5ha envisaged earlier on the basis of existing forest village rules to the “as is where basis is” advocated by the joint parliamentary committee. There is no scientific or legal basis for the 4ha figure. Another contentious issue is the cut-off date. In my view, this Act has no relevance to a cut-off date. Historical injustice has to be proved by historical records. 13 December 2005 is not a historical date. A cut-off date hints at regularization of encroachment and is certainly a reason for acrimony from the tiger lobby. But this Act is not about regularization of encroachment; it is about recording unrecorded rights and following a due process.
Tiger advocates claim that several thousand hectares will be transferred to tribals and ownership will be granted by the Act. The Act nowhere mentions either ownership (except for minor forest produce) or forest land transfer. It only secures tenure and usufructs on forest land to those who have been residing since generations.
Some also argue that the gram sabha, the lowest unit of governance, cannot be given the important task of initiating the recognition process for it lacks capacity. Why are we so reluctant to rely on the wisdom of the ordinary gram or gaon? And who really conserves forests? Aren’t the daily wagers involved in forestry, watchers, guides, informers, knowledge holders on forest, the village boy who shows the tigers to the urban tiger enthusiasts, members of the same forest dwelling communities? This Act is about their security on the land they live on.
So, who is the real threat to India’s wildlife and tigers? We have not yet been able to crack the wildlife crime syndicate even after 35 years of the Wildlife (Protection) Act. Instead we focus only on the Salman Khans and the Pataudis. The sad fact is that we have failed to devise effective strategies to tackle wildlife crimes—the biggest reason for wildlife depletion in our country.
Another contentious issue in the Act is that of “critical wildlife habitat”. This has also been pitted against the critical tiger habitat under the Wildlife (Protection) Act. A close look makes it clear there are only minor differences regarding jurisdiction and nothing else. The process of declaring both these habitats is the same and making them inviolate follows a similar process.
Further, the ongoing discourse about forest rights seems to suggest that these rights are absolute and override all existing provisions of conservation-oriented laws. This is a classic case of missing both the letter and the spirit.
The Act does not bar the operation of other laws and it gains supremacy only to the extent of the process of recognition of forest rights.
It is the Rules which fall short of expectations as they do not elaborate the process of conserving and managing forests.
(Sanjay Upadhyay is a member of the technical support group for framing rules for the Forest Rights Act and of the committee to examine the Wildlife (Protection) Act. Comment at email@example.com)